Richard j howarth I. Introduction



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1980 Rome Convention


The 1980 Rome Convention on the Law Applicable to Contractual Obligations (the Rome Convention) was promoted by the European Community (EC) 'to establish uniform rules concerning the law applicable to contractual obligations'172 within Member States. Certain commentators have broached the ambiguity of Article 3(1) in referring to 'the law chosen by the parties'173 without specifying that it be the law of a particular country; thus leaving it open to argue 'that the parties may choose to apply non-national law'.174 Implied support for such an a-national view may arguably be derived from Article 18 of the Convention:

In the interpretation and application of the preceding uniform rules, regard shall be had to their international character and to the desirability of achieving uniformity in their interpretation and application.

However, balanced against that is evidence of contrary material elsewhere in the Convention: absent a choice of law by the parties, Article 4(1) requires application of the 'law of the country with which [the contract] is most closely connected',175 and virtually all other contextual references elucidate 'that the law applicable in the respective cases must necessarily be the law of a particular State'.176 Lagarde endorses this view in maintaining that 'any attempt to apply a-national law under Article 3(1) would be regarded as a failure to express a choice with the result that the objective test of Article 4 applied'.177 Although this position is accepted as correct by Dicey and Morris,178 the Rome Convention has been criticised for this 'strange positivistic feature [which is] at odds with current commercial and judicial practice [and] has become an anachronism',179 with Berger asserting that the Convention 'should be revised so as to allow for the parties' choice of a-national legal rules'.180



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